The Fear Motivator (Part 1)

“At the beginning of every act of faith, there is often a seed of fear.”

—Max Lucado

“We were harassed at every turn – conflicts on the outside, fears within.”

—2 Corinthians 7:5

Persons motivated by fear typically resolve their case rather than proceed with litigation. The fear of what might happen is greater than any benefit they may achieve at trial.

For some, the fear is of public speaking. Not too long ago I heard about the finding that most people fear public speaking more than they fear dying. One could assume that of those in attendance at a funeral, most would rather be the deceased than give the eulogy. Those of us who make our living in court find it hard to identify with this fear. While we may have some anxiety before we begin a jury trial or argue a motion before a judge, we have no fear that would prevent us from going forward. Most plaintiffs do not earn their living from the legal system. For them, the natural fear of speaking publicly is compounded by the formality of the legal process.

Courthouses and courtrooms can be intimidating. Attorneys can recall how they felt when they entered the courtroom to argue their first case. Also, the method of communication in court is unnatural for people who are not accustomed to it. Before one can testify, a person is placed under oath. Most plaintiffs want to tell their story in their own way. The system requires that they first answer questions from their attorney and then from opposing counsel. Plaintiffs talk about painful and personal issues before an audience of complete strangers. Given the fears of public speaking, intimidation, embarrassment, and rejection, it is not surprising that most plaintiffs are fearful of trial.

For some, the natural fear of trial is coupled with fear of what the litigation process might reveal. Not too long ago I mediated a case that both attorneys agreed had significant value. Nonetheless, the plaintiff showed no interest in pursuing the case. Against her attorney’s advice, she accepted a low settlement offer. Following the mediation, I learned that the plaintiff was having an affair. She was afraid that if the case went to trial, her secret life would be exposed.

On another occasion, I was mediating a sexual harassment case. The defendant denied that he had done anything inappropriate. During the course of the mediation, the plaintiff attorney requested that I ask the defendant if the defendant’s wife knew about the plaintiff’s allegations. The defendant stated that his wife knew everything and that she was in complete support. The plaintiff’s case did not seem that strong to me, yet the plaintiff refused to reduce her demand. At the end of the day, the plaintiff attorney sent me into the defendant’s room with their final offer and a notice for the deposition of the defendant’s wife. The defendant responded by saying he would be happy to make his wife available for deposition and that he would see the plaintiff in court. The case did not go to court. It settled the next day for the plaintiff’s last demand. I don’t know what the defendant told his wife.

I suspect, however, that it is not the fear of public speaking or revelation of an unsavory secret that drives many to settle their case rather than risk trial. I believe that most people who are primarily motivated by fear are afraid of rejection. Those of us who try cases for a living love what we do. We are at home in the arena of a trial. We work hard for our clients, and we want to win. A fierce, competitive spirit is at the heart of every litigator. I imagine that the anxiety we experience while we await the jury’s decision is similar to what football players experience as they watch a kicker attempt a game-winning field goal. The livelihoods of the litigator and the football player depend on the outcome of the game. We need to win more cases than we lose. And in the end, there will always be another chance to do battle.

The plaintiffs, on the other hand, view the game from a different perspective. This case is their only chance. What the jury decides will have a dramatic and lasting impact on their lives. These two ways of looking at the same situation remind me of a story I heard about the difference between a chicken and a pig when it comes to their role in breakfast. The chicken is involved; the pig is committed.